IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         THE COURT: After a multiday trial, I found Adam Thomas Munro and 605463 B.C. Ltd. guilty of four offences under the Fisheries Act.

[2]         Munro and 605463 B.C. Ltd. submitted before and during the trial that if I found one or more of the defendants guilty in relation to Count 1 plus one or both of Counts 3 and 4, then the Kienapple principle against multiple convictions arising from the same matter should be applied and a conditional stay of proceedings entered on Counts 3 and 4 as the case might be.  The rationale for the defence position is that Counts 1, 3, and 4 as particularized in the present case charge offences that all arise out of a contravention of the conditions of licence relating to having sufficient quota on a salmon/troll licence to cover the Chinook salmon fished for, caught, retained, and then sold to the Seven Seas Fish Company (“7 Seas”).

[3]         Having found Munro and 605463 B.C. Ltd. guilty on all counts at the end of my Reasons for Judgment on April 8, 2022, I adjourned the matter to April 14, 2022, to allow counsel time to prepare their submissions as to whether the rule as expressed in Kienapple v. The Queen, 1974 CanLII 14 (S.C.C.), now some 48 years later known simply as the Principle, applied to one or more of the offences as charged.  I heard argument on April 14, 2022.  This is my ruling.

[4]         As the facts are set out in my Reasons for Judgment in R. v. 605463 B.C. Ltd., 2022 BCPC 77, I am not repeating them here in detail.

[5]         605463 B.C. Ltd. owned and operated a commercial fishing vessel named Winter Wind.  605463 B.C. Ltd. is an incorporated British Columbia company.  Michael Andrew Bullock is the sole director and officer of 605463 B.C. Ltd.  Bullock was the contact owner with the Department of Fisheries and Oceans for the Winter Wind.  Between July 9, 2018, and August 12, 2018, Munro was the skipper also known as the vessel master of the Winter Wind.

[6]         In 2018, the Winter Wind had a salmon/troll licence with conditions of licence attached, allowing the Winter Wind to retain a maximum of 0.4149 percent of the 2018 Area F Total Allowable Catch ("TAC") of Chinook salmon.  In 2018, 0.4149 percent equalled 390 Chinook salmon.

[7]         On July 22, 2018, Munro and 605463 B.C. Ltd. offloaded 346 Chinook salmon caught on the Winter Wind.  In practical terms, as a result of catching and offloading 346 salmon on July 22, 2018, the conditions of licence allowed the Winter Wind to catch and offload a further 44 Chinook salmon unless another licence holder transferred a share of their TAC to the Winter Wind.

[8]         Although a licence holder's TAC cannot be carried from one year to the next, it is a common practice in British Columbia for licence holders in the commercial fishery to transfer a share of their TAC to another licence holder.  The conditions of licence specifically allowed for such a practice.  Bullock and 605463 B.C. Ltd. regularly participated in the practice.

[9]         The DFO is not involved with the licence holders’ negotiations or financial dealings concerning the decision to transfer a share.  As such, the DFO is unaware of the terms agreed to by the parties.  All that matters to the DFO is that a valid application to transfer a share is submitted to them.  Upon receiving the valid application to transfer a share, the DFO processes the application and, upon approval, the DFO assigns a Chinook Quota Reallocation Confirmation Number certifying completion of the Chinook quota reallocation.  In the Winter Wind's case, the conditions of licence allowed the Winter Wind to acquire a maximum total uncaught quota equal to three Individual Transferrable Quotas which equates to 1.245 percent of the 2018 Area F TAC.  In other words, 1,170 Chinook salmon.

[10]      Sometime prior to July 22, 2018, as in previous years, Bullock relied upon his ex-wife to arrange for 605463 B.C. Ltd. to purchase another commercial fishing licence holder's 2018 Area F TAC of Chinook salmon.  In cooperation with Nick at 7 Seas, Bullock’s ex-wife arranged with 7 Seas and a fishing licence holder named Chinalibut for 605463 B.C. Ltd. to pay $4,000 for Chinalibut's 0.4149 percent share of the 2018 Area F TAC of Chinook salmon.  In doing so, 605463 B.C. Ltd. anticipated adding 390 Chinook salmon to Winter Wind's allowable catch bringing its TAC to 780 Chinook salmon for 2018.

[11]      On August 11, 2018, Mr. Munro and 605463 B.C. Ltd. offloaded a further 261 Chinook salmon caught on the Winter Wind which were sold to 7 Seas.  For reasons left unexplained at trial, the transfer of Chinalibut's 0.4149 percent share of the 2018 Area F TAC of Chinook salmon to the Winter Wind was not completed and, accordingly, on August 11, 2018, the Winter Wind only had room for an additional 44 Chinook salmon on its licence.  Consequently, on August 11, 2018, the Winter Wind was 217 Chinook salmon over its quota limit and therefore 217 Chinook salmon were illegally fished for, possessed, and sold.

[12]      The Kienapple principle is succinctly set out at paragraph 17 of R. v. Wigman, 1985 CanLII 1 (S.C.C.):

[13]      As noted by Ms. Switzer for the PPSC, Justice Edelmann's decision in R. v. Steer, 2021 BCSC 2404, and Justice Gray's decision in R. v. Armstrong, 2010 BCSC 1041, are binding on this court.  Per Armstrong:

[14]      In the present case, Count 1 is a conviction for contravening or failing to comply with a condition of licence.  In simple terms, having reached its quota of 390 salmon on August 11, 2018, and without the transfer of Chinalibut's 0.4149 percent share of the 2018 Area F TAC of Chinook salmon to the Winter Wind, fishing on board the Winter Wind should have ceased upon the Winter Wind catching an additional 44 Chinook salmon.  The gravamen of the offence in Count 1 is the Winter Wind's failure to stop fishing for Chinook salmon upon reaching the quota of 390 Chinook salmon.  The possession of the excess 217 Chinook salmon and the selling of the 217 Chinook salmon to 7 Seas are irrelevant to the conviction.

[15]      Count 3 is a conviction for selling the excess 2017 Chinook salmon to 7 Seas.  The gravamen of the offence in Count 3 is the selling of the 217 Chinook salmon.  Count 3 has nothing to do with the fishing for or possession of the 217 Chinook salmon.  Hence, the selling of the 217 Chinook salmon clearly has an additional and distinguishing element on the offences in Counts 1 and 4.

[16]      Count 4 is a conviction for possessing the excess 217 Chinook salmon.  The gravamen of the offence in Count 4 is the possession of the 217 Chinook salmon.  As per Armstrong, possession of the fish is a different thing from fishing for Chinook salmon after the 390-fish quota had been reached or selling the 217 Chinook salmon.  As a result, Count 4 clearly has an additional and distinguishing element from the offences in Counts 1 and 3.

[17]      For the reasons just explained, I am satisfied that these are three distinct offences, each with distinct elements, such that the Kienapple Principle does not apply.

[18]      Convictions will be recorded against Mr. Munro and 605463 B.C. Ltd. in relation to Counts 1, 2, 3, and 4.